Beatt v Croydon Health Services NHS Trust

In an automatic unfair-dismissal claim under section 103A, the tribunal must identify the facts or beliefs that caused the dismissal, but must determine objectively whether the disclosure was protected. The employer’s own belief about that legal question is irrelevant. Where protected disclosures are relied on alongside other disciplinary charges, the tribunal must assess which reason was principal by considering their relative importance. A mere factual connection between disclosures and charges is not itself sufficient, although express reliance on the disclosures may be decisive. For detriment claims under section 47B, malicious motive or a knowingly false statement is unnecessary. Compensation may involve a broad-brush assessment of what would have happened without the unfair dismissal.

Dr Kevin Beatt, a consultant cardiologist, was dismissed by Croydon Health Services NHS Trust after raising concerns about patient safety and nursing arrangements following a patient’s death. An Employment Tribunal found that several disclosures were protected and that the dismissal was automatically unfair under section 103A of the Employment Rights Act 1996. It also upheld claims concerning three post-termination detriments under section 47B and made no reduction for Polkey or contributory fault.

The Employment Appeal Tribunal allowed the Trust’s appeal and remitted the liability issues for rehearing. The Court of Appeal considered whether the Tribunal had applied the correct test for the reason for dismissal, whether its reasoning was adequate, and whether its findings on compensation and post-termination detriments could stand.

1. Appeal allowed. The Employment Tribunal’s findings on automatic unfair dismissal, post-termination detriments, Polkey and contributory fault were restored. The case was to proceed to a remedy hearing unless settled.
2. Under section 103A of the Employment Rights Act 1996, the tribunal must distinguish between the reason for dismissal and the question whether a disclosure was protected. The first question concerns the facts or beliefs operating on the decision-maker’s mind. The second is an objective statutory determination. The employer’s belief that a disclosure was made in bad faith cannot replace that determination.
3. The Employment Tribunal was entitled to find that the making and escalation of the disclosures was the principal reason for dismissal. The dismissal letter expressly relied on several disclosures as disciplinary charges. The Tribunal had also assessed the relative importance of the remaining charges. The Employment Appeal Tribunal wrongly treated the Tribunal’s consideration of the strength of the misconduct case as its whole reasoning, and wrongly treated the phrase related to as establishing the causation test. The Tribunal’s conclusion was based primarily on the Trust’s own dismissal documents and was adequately reasoned.
4. The Polkey exercise is a hypothetical assessment which may properly be broad-brush. The Tribunal was not required to resolve every detail of how the claimant’s working arrangements might have been managed. Its conclusion on contributory fault was also sufficiently supported by its detailed factual findings. Under the Act as it then stood, there was no basis for treating section 123(6) as inapplicable to whistleblower cases.
5. The Tribunal was entitled to find that the second GMC letter, the press release and the report to the Trust board were detriments materially influenced by protected disclosures. A detriment need not be maliciously motivated, and the Tribunal was not required to find that the Trust knowingly issued a false statement or to determine every allegation advanced by the claimant.

1. Court of Appeal (Civil Division) [2017] EWCA Civ 401: allowed the appeal and restored the Employment Tribunal’s findings on all points.
2. Employment Appeal Tribunal: allowed the Trust’s appeal, set aside the Employment Tribunal’s liability findings and remitted the issues for rehearing before a differently constituted tribunal.
3. Employment Tribunal: upheld the automatic unfair-dismissal claim, three post-termination detriment claims and the claimant’s position on Polkey and contributory fault.